Dissenting report by Government Senators

Dissenting report by Government Senators

General comments

1. It is the view of the Government Senators that the
majority report on the operation of the Migration Act is substantially flawed by
a biased and highly selective use of the evidence presented during the inquiry.

2.
Four matters stand out in this regard.

3.
First, the report consistently fails to see DIMA in its
wider context: DIMA makes in excess of four million decisions every year and
administers large and complex migration and refugee programs. As Mr
Andrew Metcalfe,
departmental secretary, told the Committee during Additional Estimates
hearings:

To give you a sense of scale, in addition to the 43 per cent of
Australians who are either born overseas or have at least one parent born
overseas, Australia is host to very large numbers of temporary entrants. In
December 2005, for example, there were around three-quarters of a million
people in the country on a temporary basis. In the 10 minutes or so that I have
been speaking, the department has considered and granted around 90 visas and around
550 people have entered and left our country – that is almost one every second.[1124]

4.
These decisions occur across all areas of the
department's wide portfolio responsibilities which include migration and
settlement, multiculturalism, community harmony and citizenship objectives.

5.
Government Senators also note that DIMA, in carrying
out it's wide portfolio responsibilities also incurs litigation costs. In
evidence to the Inquiry, Mr John
Eyers, Assistant Secretary, Parliamentary
and Legal Division stated:

... the costs of litigation to the Commonwealth in the immigration
sphere are quite significant and have been significant for a number of years,
and that is largely due to the number of cases which are undertaken in any
year. We currently have a litigation caseload of around 3½ thousand active
cases before the courts and the AAT. We receive approximately 5,000 new cases
each year – we have for the last couple of years – and we resolve just in
excess of 5,000 each year. The numbers are fairly large. For the last financial
year, 2004-05, our spend on litigation external to the department was in the
order of $36.8 million and the internal cost of managing that litigation is
somewhere in the order of $5½ million.

As far as our success
rate in litigation is concerned, in recent times that has been very high. We
certainly take great care to seek to defend only those cases where we have
reasonable grounds for success and I think that is reflected by our success
rates. In the financial year 2002-03, we were successful in 92.5 per cent of
cases that were defended before the courts; in 2003-04, that improved to 94 per
cent; and for the last complete financial year, 2004-05, it was 95 per cent.

6.
Inevitably, in managing such a large number of matters,
any agency will make a certain number of mistakes. While it is quite proper to
examine these mistakes, and take measures to address them, this report makes no
attempt to see the department's decision making in this wider context. Instead,
it arrives at general conclusions based on isolated specific examples.

7.
Second, the gaze of the report seems resolutely fixed
on the past. Large tracts of text are devoted to a detailed rehashing of
information and allegations contained in previous inquiries, blind to the quite
extensive changes announced by the Minister of Immigration and Multicultural
Affairs as a result of, among other things, the recent Palmer and Comrie
inquiries. Consequently, many of the issues and criticisms presented in the
report are out of date and irrelevant.

8.
Third, the report is characterised by biased and
uncritical approach to the evidence. In particular, many allegations are passed
off as evidence of fact without any attempt to test the accuracy of the claims
being made or the motives of the individuals making them. As noted above, these
allegations are then used to justify sweeping generalisations and
recommendations.

9.
Fourth, since the report seems largely concerned with
the management of asylum seekers and immigration detention to the exclusion of
the wider operation of the Migration Act, it seems reasonable to point out that
the system of mandatory detention was introduced in 1992 by a Labor Government.
In this context, Government Senators also note with concern that the majority
report fails to mention, much less objectively examine, detention statistics
prior to 1996. The period 1992-1996 is conveniently left absent from discussion
in the majority report.[1125]

10.
In addition, Government Senators note:

selective quoting with unreasonable weight given
to comments made by avowed critics, not only of the policy of mandatory
detention, but of the Howard Government in general;

selective quoting of statistics;

an unbalanced presentation of material with
chapters containing evidence that is overwhelmingly critical of DIMA which
fails to include material provided by DIMA in response. During the course of
the inquiry, DIMA produced a lot of material in response to questions on notice,
and little of that material has been included in the Chair's report;

an accusatory and negative tone which uses 'over
the top' language rather than an unembellished account of the facts;

failure to give proper weight to the reasons why
people stay in detention – often for lengthy periods – due to, for example,
litigation commenced by them or delays due to applicants seeking adjournments;

given migration agents play an important role,
the report should have included information about problems with unscrupulous
agents and their impact on cases, as well as the exorbitant fees they charge;

11.
Because the majority report seems disinclined to,
Government Senators consider it is important to reiterate key elements of the
government's reform program announced since the Palmer
and Comrie reports.

12.
An important starting point in this process has been
the referral by the Minister to the Commonwealth Ombudsman, all cases of
detention that might be in any way doubtful, in the light of the Rau and Alvarez
cases.

13.
Supported by a commitment of $231 million, the
department has implemented a roadmap for change which includes: the creation of
an open and accountable organisation with obligations to government and
community; fair and reasonable dealings with clients; and well-trained and
supported staff.

14.
The national office has been restructured, to achieve
improved and stronger governance arrangements, including a new values and
standards committee. This has a membership of three external members including
the Deputy Ombudsman and the Deputy Public Service Commissioner. The Audit and
Evaluation Committee has also been expanded to have an external chairperson.

15.
In addition to the staff training initiatives mentioned
in the majority report, substantial improvements have been initiated for the
immigration detention centres, which go well beyond the recommendations made in
the Palmer report, and a new active case
management framework and community care pilot is also being developed for clients
with exceptional circumstances. All detainees are now screened for mental
health problems and mental health plans are developed, where appropriate. Vast
physical improvements have also been made at Baxter and other
immigration detention centres.

16.
Independent reviews of the department's information
technology systems have been implemented, examining business information needs,
governance, and records management. To these should be added the wider
groundbreaking work that by the department in developing computerised systems
for visa applications that are accessed by the internet and processed almost
instantly.[1126]

17.
The department has also expressed an ongoing commitment
to building on all its reforms, progressing projects; continuing to engage,
listen and respond to community concerns; and, of course, transparent and
accountable reporting through the Minister to Parliament.

18.
In combination, these amount to a substantial and
systematic response by the government to the flaws identified in the
department's administration. The failure by the majority report to properly
consider these changes casts doubt on the accuracy and relevance of the
majority report's recommendations.

19.
Government Senators consider the majority report ignores
the wider context of the essential work that the department does in controlling
Australia's
borders. This task is essential to the security of Australia
against criminal and terrorist elements that may seek entry, as well as
fundamental to the integrity of Australia's
system of governance, which would be undermined without the basic ability to
control who enters the country and under what conditions. Allied to this is the
reluctance to recognise the inherent complexity and difficulty of performing
this task.

20.
Government Senators are unable to agree with either the
analysis or the findings of the majority report.

21.
Further specific comments in relation to each of the
chapters in the Majority Report are discussed below.

Chapter 1: Ministerial responsibility

22.
The discussion contained in Chapter 1 is flawed by a
number of inaccuracies that must be corrected.

23.
In relation to references to DIMA's 'systemic' and
'catastrophic' failings in paragraphs 1.3 and 1.4 of the Chair's report, Mr
Comrie's report stated that the handling of the
case in question was 'catastrophic'. This was a comment on the consequences for
the individual concerned, not a statement specifically referring to 'the
leadership, management, actions, systems and processes of DIMA' more generally.
The reference is to the management of one particular case and it should not be
pluralised and stretched to systems and matters that were not the subject of Mr
Comrie's inquiry.

24.
Paragraph 1.9 sets out what purports to be a list of
the significant improvements to be carried out with the $230 million approved
by the Federal Government, flowing from the Palmer
Report. This list does not refer to IT
systems, to which a large part of the funds mentioned will be allocated. It
should be noted that the current systems played a significant role in the
failure to identify Vivian Alvarez.

25.
Paragraph 1.12 quotes Senator Evans' reference to the
Palmer Report and comments on the ability of the authors of 'failed practices,
poor decisions etc...' to implement changes. Senator Evans
says that this disqualifies Minister Vanstone
from implementing change. Government Senators consider that, as a basic
principle, if the Chair's report is to quote the Palmer
Report, it should do so directly and not via
politically biased paraphrases. Further, if this is a reference to Finding 20
on page xi of the Palmer Report,
it is misleading. Mr Palmer's
comment was in relation to 'the current immigration compliance and detention
executive management team'. Stretching this to be a reference to the Minister
is dishonest.

26.
In reference to the 'allegations against' the Minister
and former Minister in paragraph 1.17, no specific allegations are made but
simply the claim of 'failure' to properly exercise discretionary powers and the
failure to rectify problems before they were apparent.

27.
In paragraph 1.25, it is asserted that the culture of DIMA
developed as a direct result of 'the government's tougher immigration policy'. No
evidence at all is adduced in support of this assertion.

28.
The words 'the framework within which DIMA has been
required to operate' quoted in paragraph 1.26 are taken to be a reference to Federal
Government policy. This is not warranted. Page 171 of the Palmer
Report amplifies these matters and it is
clear that this is a reference to longstanding organisational practices within
parts of DIMA and the culture to which it gave rise. The principles that are
enunciated on page 1 of the Palmer
Report make clear that the policy
imperatives are also longstanding, going back to 1992 and were implemented by
the Keating Labor Government. The current inquiry did not call this policy into
question.

29.
Government Senators also note the inaccuracy of the
reference in paragraph 1.27, footnote 23 which cites page 166 of the Palmer
Report. Page 166 of the Palmer
Report does not have any reference to the
Minister or her advisers, nor to contact with them by DIMA.

Chapter 2: Processing of protection visa applications

30.
The Chair's report's reference to high set-aside rates
by tribunals implies that this is an adverse reflection on DIMA. The report
acknowledges that the MRT and the RRT have indicated that these rates are
explicable in part because of 'further evidence and information' available at
the time of review. However, without further evidence, the slur on DIMA
officers is completely inappropriate.

31.
The majority report fails to acknowledge the
department's achievements in meeting the Prime Minsiter's commitment to process
one hundred percent of initial protection visa applications within 90 days.

32.
Paragraph 2.87 refers to claims that decision-makers
rely more on policy documents and guidelines rather than the legislation
itself. It is not clear whether the Chair's report is questioning the training
and support given to decision makers or the fact that the contents of policy
documents may have the force of law.

33.
Paragraphs 2.115-2.139 contain criticism of the quality
of country of origin information which should be reconciled with the levels of
successful asylum claims in Australia
by comparison with other countries. The Chair's report earlier acknowledges
information from DIMA that these levels are high. If the country of origin information
is so bad, why are the approval rates for asylum claims so high? The rates for
other comparator countries should have been quoted in the report. It would also
have been helpful to include international comparisons in relation to access to
legal assistance for asylum claimants.

34.
Chapter 2 of the Chair's report discusses generally the
role of migration agents, but contravention of the MARA legislation is not
specifically addressed. This is an important omission given the role that
migration agents play in the overall system, and the effects of any malpractice
on that system.

35.
The Government and the Migration Agents Registration
Authority (MARA) are taking strong action against unscrupulous agents who lodge
large number of applications with no chance of success:

The Migration Agents
Integrity Measures Act 2004 was developed following an analysis of the
activity of migration agents who lodge Protection visa applications, which
showed that 95 agents appeared to be engaging in 'vexatious activity'. Between
them, these agents had 3,470 Protection visa applications refused over an eight
month period from 1 November 2001
to 30 June 2002. A total of
9,238 Protection Visa applications were lodged during 2001-02 financial year.

These statistics were used to help develop a list of agents of
concern for the Migration Agents Task Force (MATF), which was set up in June
2003 to investigate particular registered and unregistered agents allegedly
involved in breaches of the Migration Act 1958 and other Commonwealth
legislation.[1127]

36.
The effects of the Migration Agents Integrity Measures
Act, increased sanction actions by the MARA and the disruption activities of
MATF, has resulted in a significant number of these 95 agents of concern being
removed or forced out of the industry. Since the legislation came into effect on
1 July 2004, only seven
agents have been identified as coming within the scope of the vexatious
activity sanction scheme:

Every Protection visa application lodged by these seven agents
has been identified. All the relevant case files are being collated to enable
comprehensive analysis of each agent’s activities. One of these agents has
already had their registration cancelled by the MARA under its discretionary
sanction powers. Three agents have already been formally asked to explain their
actions, as a precursor to being considered for referral to the MARA for
possible sanction under the sanction regime introduced in the Migration Agents
Integrity Measures Act, pending judicial review of some of their cases. 'Show
cause' letters are being prepared to send to two more of these agents.

37.
The deterrent effect of these measures is evident from
the fact that since 1 July 2004,
no agents have been identified as within the scope for the vexatious activity
sanction scheme in terms of their lodgement of other types of visa
applications. However, the MARA continues to take strong action against agents
of concern, although at a lower level than in 2003-04, with:

37 sanction decisions made during 2004-05
(compared to 42 in 2003-04); and

28 agents refused registration (a drop from 44
in 2003-04).

38.
The department is continuing to take a pro-active
approach in relation to other agents of concern, including through the creation
of profiles of agents with high refusal rates and those who have lodged a
number of applications with fraudulent supporting documentation. Warning
letters are also being sent to registered migration agents who:

are involved in at least five cases where
fraudulent supporting documentation has been identified;

repeatedly lodge incomplete applications;

act in cases where a conflict of interest may
arise; or

appear to lack sound knowledge of migration law
and procedure.

39.
Better researched and more substantive complaints about
migration agents are referred to the MARA for further investigation, and the
department advised that 31 such complaints have been referred to the MARA since
1 July 2005.

40.
The department also provided information on actions
taken to address complaints over high fees by migration agents.

As many consumers only seek migration advice once, the level of
community knowledge about what may be an appropriate fee for a certain visa has
always been low. Further, information about quality and price has not been
readily available, making comparisons difficult.

The Migration Agents Registration Authority (MARA) published
information about the average fees charged by migration agents in November
2005, as recommended by the most recent industry review. Fee information has
been provided for most of the permanent visas, as well as for student and other
temporary visas.

41.
This information will improve consumer protection
through building community expectations about appropriate fees and changes.[1128]

Chapter 3: Secondary assessment of visa applications

42.
Government Senators acknowledge the validity of criticisms
that the RRT and MRT have often taken too long to make decisions in the past. However,
the Majority report does not mention the important changes which have been
introduced by the Migration and Ombudsman Legislation Amendment Act to increase
accountability of the time taken to make decisions via Parliament. This is a
significant development which has been dismissed.

43.
It should be emphasised that this piece of legislation
passed unopposed by non-government parties. The parliamentary debate on the Bill
provides good background information about this legislation.

44.
As pointed out above, the majority report focuses
heavily on the past as if this is still the current practice. The Chair's
report basically regurgitates the findings of previous, and now out-of-date,
inquiries. The Committee should have taken the effort to come up with fresh
perspectives rather than duplicate findings that are now no longer current.

45.
Many of the quotations in the Chair's report are
comments submitted previously in other contexts. Many are the perspectives of
agencies which and advocates who in the past have been vocal in speaking out
about mandatory detention. These groups are ideologically opposed to mandatory
detention including some who would advocate diluting our strong and effective
border protection measures. Overall, Government Senators are of the view that
there has been no attempt in the Chair's report to obtain a balanced view
amongst the commentators.

46.
Further, and in relation to membership of the RRT, and
qualifications of its Members, which is discussed at paragraphs 3.31 and 3.32,
Government Senators note that evidence was provided by Mr
Burnside QC at the Melbourne
hearing that:

Some commentators have rather uncharitably pointed out that the
principal qualification in recent years seems to be a failed candidacy for a
Liberal seat.

47.
DIMA was asked to give a breakdown of the qualification
of the membership of the RRT. DIMA's response of 7 February 2006 gives a breakdown of the immense variety
of backgrounds of Members but none of these details have been included in the
Chair's report. DIMA provided information showing that Members of the RRT come
from a broad cross-section of the community in a host of different areas. Specifically,
DIMA advised that of the 71 Members currently appointed to the RRT:

48.
That is, 98.5% of RRT Members hold a tertiary
qualification and 79% have more than one tertiary qualification. The 1.5% of
Members who do not have tertiary qualifications had extensive experience in
refugee matters prior to their appointment.[1130]

49.
Further, DIMA advised that appointments to the RRT are
made under the Migration Act by the Governor-General based on recommendations
made and approved by the Federal Government. Generally:

... appointments are made following a nationally advertised
recruitment campaign. A Selection Advisory Committee appointed by the Minister
measures applicants against published selection criteria designed to identify
people with the following skills:

a sound understanding of the relevant law;

the ability to apply relevant law to make
quality decisions in a manner that is fair, just, economical, informal and
quick (as required by the Act);

RRT Members are statutory office holders independent of the
Minister and the Department of Immigration and Multicultural Affairs. Whilst
the Act permits the Minister and Principal Member of the Tribunals to provide
general Directions to Members concerning their method of performance or
exercise of general powers or functions under the Act, that power does not
allow a member to be directed as to how to exercise his or her powers in
specific cases.[1132]

51.
In paragraphs 3.39-3.95 there is no mention of the fact
that sometimes a decision is held up due to factors outside the control of the tribunals
– such as information coming from a third agency. However, under the new
legislation, the reasons for delays have to be tabled in Parliament so that some
assessment can be made as to whether or not the MRT or RRT is causing the delay,
or whether there is some other explanation.

52.
There is criticism that time limits should be more
flexible and that Members should have the discretion to extend them. This
criticism is consistent with the recommendation in the Chair's report to replace
the entire merits review process with a judicial process. It is the view of
Government Senators that it is legally and practically undesirable to eliminate
or downplay the administrative review role played by the Tribunals.

53.
Extending time limits as recommended by the majority
Report, will prove counter-productive to the Tribunals' aim to provide timely decisions.
Time limits have served as a means of enforcing some discipline on the lodging
of applications. If these are to be removed then cases will drag on
indefinitely and the flow-on effect will be that cases will take longer to
finalise and the Tribunals will experience blockages (as the courts do now). In
the end, justice will not be served.

Freedom of information

54.
Government Senators note the criticisms relating to the
length of time it takes to process FOI requests. The wide-ranging changes in
DIMA as a result of the Palmer inquiry will
ensure that administrative processes will be more transparent and that time
frames will be more closely adhered to.

55.
In terms of what can be provided publicly and
non-disclosure due to public interest claims, it is essential that matters of
privacy, or matters that go to the heart of national security or other
operational matters, be kept out of the public arena. The application of the
public interest test could be reviewed to see if there are ways to ensure it is
not being applied indiscriminately.

56.
It should be noted that the concerns regarding FOI are
not being expressed in the Chair's report after a thorough examination of empirical
evidence by the committee in order to reach its conclusions. The Chair's report
simply quotes the Law Institute of Victoria but there is no data or actual
analysis of the cases where there has been a delay and where people have been
unreasonably denied access to documents.

Legal representation

57.
In relation to paragraph 3.109, Government Senators are
mindful of concerns with limitations on legal representation (for example, not
more than one person; representation by a qualified lawyer or registered
migration agent). However, this is to avoid hearings descending into an
adversarial process where perspectives other than the applicant's are
interpreted. While an applicant's command of English may not be entirely
satisfactory, the Member is entitled to have a direct relationship with the
applicant so that the applicant can best put forward his or her case.

58.
The Tribunals are not a court where applicants will be
required to face large costs to obtain legal representation in order to ensure
a positive outcome. The advantage of tribunals is that they are informal and
are meant to deal with the applicant directly rather than with other
intermediaries – the process is empowering to the applicant. It is not meant to
be intimidating.

Rules of evidence

59.
In paragraph 3.110, the Chair's report calls for the
application of the rules of evidence in Tribunal hearings. Again this would
mean expensive drawn out litigation-type experiences for applicants. The report
laments the lack of cross-examination by witnesses when the aim of the system
is to ensure that the formality of the court process does not inhibit the applicant.

60.
On the one hand, the Chair's report appears to be
favouring the tribunals taking on a more judicial role but, on the other hand,
it argues that the Federal Courts should be able to review the merits of cases.
It is important that people be given a forum other than a court, with all its
formality and complexities, to present their case.

Tribunal members

61.
Chapter 3 of the majority report contains a litany of
assertions which is critical about the conduct and attitudes of Tribunal
Members and makes some unfounded allegations which paint all Tribunal Members
as having a 'confrontational' attitude which undermines decision-making. Criticism
of performance management and the independence of Tribunal members is
unjustified. Government Senators maintain that one only has to look at the
information provided in Annual Reports to see that Members come from a rich and
diverse range of backgrounds and that they contribute to the community on a
wide level. If there are examples of Members behaving inappropriately this
should be drawn to the attention of the Principal Member immediately, but to
tarnish all Members in the way the Chair's report does is unfair.

62.
The Chair's report seems to favour a multi-Member panel
approach to decisions. Such an approach would be resource-intensive and there
is no evidence to suggest that a better outcome will be achieved. The
suggestion that a multi-panel approach would prevent the Minister from
interfering in the outcome of decisions is nonsense – the entire process is
independent of the Minister.

Non-meritorious cases

63.
There is some mention of success rates in judicial
review of MRT and RRT decisions in the Chair's report, along with a brief
reference to the costs of litigation to the Commonwealth for defending cases (see,
for example, Chapter 3, footnote 144). The Chair's report also describes the
appeal process. However, the significant issue of non-meritorious cases is not
addressed.

64.
On 11 October
2005 questions were directed to an analysis of the many
non-meritorious cases and how they find their through the appeal process, and
the costs associated with that. DIMA provided an answer on 25 October 2005 but no reference is made to it
in the majority report.

65.
DIMA provided the following pertinent information to
the committee in respect of non-meritorious cases:

Appeal through the various layers of judicial review has become
common place and considered, by many applicants, to be part of the process. This
has resulted in significant numbers of matters being pursued all the way to the
High Court. In 2001-02 financial year 5% of all applications for judicial
review of migration decisions were applications for special leave to appeal to
the High Court. The 2004-05 financial year has seen a fourfold increase in such
appeals, with 20% of applications received being High Court special leave
applications.

On 1 January 2005
the new High Court rules commenced which gave the court the power to dismiss
applications for Special Leave on the papers where an unrepresented applicant
has either no reasonable cause of action or has not filed the required
documentation. This change to the rules, largely a response to the Court’s
increasing workload of migration matters, has had a dramatic effect on the
number of matters which proceed to hearing in the High Court. Between 1 January 2005 and 21 October 2005 there have been 508
applications for special leave determined in the High Court, of which 8
resulted in favourable outcomes for applicants. Of these 508 resolutions in
excess of 80% have been dismissed on the papers.

In addition to applicants pursuing matters through the various
stages of judicial review, there is a trend towards re-filing and commencing
the process again. For example in the period 1 July 2005 to 30 September 2005,
91 out of 713 applications for judicial review filed in the Federal Magistrates
Court or Federal Court at first instance were filed by applicants who had had
previous judicial review of the same refusal decision.[1133]

66.
DIMA provided the committee with multiple examples of
recent cases where judges and magistrates have been highly critical of applicants
who pursue non-meritorious claims. In one such case, VWZG v MIMIA[1134], Justice
Weinberg stated that:

In my view the current proceedings amount to an abuse of process
because: the repeated bringing of applications for judicial review of the same
tribunal decision is unjustifiable, vexatious and brings the administration of
justice into disrepute; there is an underlying public interest in the finality
of litigation; the current application for judicial review is devoid of
particulars, and fails to disclose any arguable basis; and in all, the
applicant has brought seven proceedings in relation to the same RRT decision,
three of which he has chosen to discontinue. Having regard to his history of instituting
proceedings, only to subsequently abandon them, I am prepared to infer that he
has brought this application for the collateral purpose of extending the period
of his stay in this country.[1135]

67.
There are many other cases where judges and magistrates
have made similar comments. DIMA's response to questions on notice sets out
some recent examples where judges and magistrates have commented on
non-meritorious cases.[1136]

Chapter 5: Mandatory detention in policy

68.
Government Senators are concerned at the selective
quoting of statistics in this chapter. Table 5.1 reflects a recurring theme in
the Chair's report. Notwithstanding the fact that mandatory detention was
introduced by the Keating Labor government with bipartisan support in 1992, the
report is skewed towards looking only at events and statistics from 1996-97,
following the election of the first Howard Government.

69.
The following table sets out the number of people in
mandatory detention since 1992:

Table 5.1: Number of vessels and number of
unauthorised arrivals

Year

No. of vessels

No. of unauthorised arrivals

1991-92

3

78

1992-93

4

194

1993-94

Figure
not available

209

1994-95

20

1,071

1995-96

14

589

1996-97

13

365

1997-98

13

157

1998-99

42

926

1999-2000

75

4,175

2000-01

54

4,137

2001-02

23

3,649

2002-03

nil

nil

2003-04

3

82

2004-05

nil

nil

1 July 2005 – 20 January 2006

2

50

Source: DIMIA, Managing the
Border, 2004-05 edition, p. 29; and figures provided to the committee by DIMIA
on 20
January 2006.

70.
In paragraphs 5.11-5.19, there is a clear failure to
recognise the Federal Government’s reform agenda. The reforms flowing from the Palmer
and Comrie inquiries represent real and significant changes to the
administration of the policy of mandatory detention. The ALP introduced this
policy but never provided alternatives to mandatory detention, particularly for
women and children. The Chair's report glosses over this. Paragraph 5.77
provides another example where the Chair's report clearly ignores the reforms
implemented by the Federal Government.

71.
Paragraph 5.20 contains selective quoting. The report
focuses on critical responses to the Federal Government’s reforms. Many
commentators and advocates have welcomed the new measures but their views are
not presented.

72.
Paragraph 5.38 contains numerous of dubious and
simplistic reasoning. The Chair's report quotes selectively in attempting to
prove that global asylum flows, not government policy, are responsible for the
decline in the numbers of people seeking asylum in Australia.
This is simply not true. There are significant lead-times involved in reducing
the size of refugee 'pipelines'. The reality is that tougher policies were
introduced in October 2001 and, by December 2001, the boats had effectively
stopped. If global trends were the reason, this effect would have taken much
longer to register. Furthermore, resolution of conflicts in Afghanistan
and elsewhere only reduced refugee pipelines from certain areas, in certain
countries, and amongst certain people. Significant economic push factors remain
throughout the world today.

73.
Paragraph 5.48 refers to remarks on the indeterminate
nature of mandatory detention. The Chair's report fails to appreciate that, for
many, continuing detention is a choice for those who, however weak their
claims, persist in seeking a permanent migration outcome. If people repeatedly
seek to challenge the fact that they have consistently been found not to need
protection, there comes a point where they must take some responsibility for
their choices. Australia
does not operate a visa system to that regulates the entry and stay of
non-citizens, merely to provide open-ended access to benefits and work rights for
people who do not qualify for a visa under that system.

74.
Again in paragraphs 5.48-5.58, the Chair's draft suffers
from selective quoting. Not just in these passages, but throughout the entire
report, unreasonable weight is given to comments made by avowed critics, not
only of the policy of mandatory detention, but of the Howard Government in
general. Simply footnoting these remarks does not make the work more
academically rigorous or credible than any other piece of openly partisan
commentary.

75.
There are many instances of partisan amnesia in the
Chair's report – paragraph 5.59 is an example. The report says that witnesses
argue that many of the problems associated with immigration detention are
embedded in the law itself. That may or may not be but, again, this a law that
the ALP introduced.

76.
Paragraph 5.72 contains an obvious deviation from the
inquiry's Terms of Reference. The report rightly acknowledges that looking at
the merits of a bill of rights is outside the scope of the present inquiry but
then proceeds to make a subjective comment on the question. Either it is
outside the inquiry's scope or it is not.

77.
Flimsy conclusions are provided in paragraph 5.82. The
report says that there is a 'persuasive argument that the deterrent effect of
[mandatory detention] is not...efficacious'. This argument is not persuasive at
all. Government Senators are of the view that it is bald assertion backed up by
selective quoting of statistics and biased secondary sources.

Chapter 6: Mandatory detention in practice

78.
As a general comment, this entire chapter uses the
subjective and untested experiences of a handful of detainees as a basis to
make sweeping generalisations and recommendations about the administration of
detention centres. Further, there is a complete absence of academic rigour. The
chapter makes no attempt to corroborate claims made by detainees and various
other criticisms levelled by lawyers and advocates.

79.
Government Senators believe that Recommendations 35 and
36 are vexatious. The Chair's report says that management units should be
closed, but then says that in the alternative they should be limited to use for
short periods only in an emergency. Which is it?

80.
Paragraph 6.37 contains serious allegations about
bashings in an immigration detention centre which are presented as fact. It
does not appear that the committee has at any stage attempted to test the
veracity of these claims by asking DIMA or GSL to comment specifically on these
allegations. The experiences of one visitor to an immigration detention centre
are used to imply a culture of impunity within immigration detention centres in
general. Completely meaningless and unempirical talk of 'feelings' that staff
at immigration detention centres have a mandate to do as they please have no
place in any serious work.

81.
Paragraph 6.65 contains further untested allegations. Serious
allegations are made here but it does not appear that these have been referred
to DIMA either for comment or investigation.

82.
Paragraph 6.85 reveals yet another example of partisan
myopia. It would be worth noting here that there are currently no children in mainland
immigration detention centres, only in alternative forms of detention such as
residential housing centres.

83.
Although this chapter contains some consideration of
the issue of payment of debts as a result of detention, Government Senators
would have preferred the inclusion of greater details in relation to the cost
of overstayers and the value of their unrecovered debts that accrue to the
Commonwealth. DIMA provided the committee with information that, for the
2004-05 financial year, 3,813 visa overstayers were held in immigration
detention. During this time, these overstayers accrued a total debt to the
Commonwealth for immigration detention costs of $11,615,874. On average, DIMA
recovers only about 4% of immigration detention debts. Based on these figures,
during the 2004-05 financial year it is estimated that $11,151,239 in detention
debts incurred by overstayers will not be recovered. This is a debt which the
taxpayers of Australia
are required to bear.[1137]

Chapter 7: Outsourcing of management of immigration
detention centres

84.
Government Senators are of the view that, to a large
extent, this chapter of the Chair's report pre-empts a forthcoming ANAO report
into the negotiations of DIMA's contract with GSL. Government Senators believe
that it is inappropriate to comment further on the issues raised in this chapter
until DIMA has had an opportunity to respond to the findings and
recommendations of the ANAO's report.

85.
By way of background, DIMA provided the following
historical information about detention centre contracting.

86.
On 22
December 1997 the department entered into a contract with
Australasian Correctional Services Pty Ltd to provide a broad range of
specified services that were appropriate for the detention conditions envisaged
at the time. The contract with ACS was signed on 27 February 1998. Their role was as prime contractor
provide guarding, interpreter and translation services, catering, cleaning,
education, welfare, health services, escort or transport services and any other
services as required. The Contract introduced various components including
detention standards and a sanctions regime.

87.
On 27 August
2003 the department entered into a Detention Services Contract with
a new provider, Global Solutions Limited. This contract was an improvement on
the previous contract and contained additional standards and measures of
performance.

88.
This is in contrast with the more ad hoc arrangements
which appear to have been in place from the introduction of mandatory detention
by the Keating Labor government. Prior to 1997, detention services were managed
by the department using a range of government and non-government agencies to
provide specific services ie:

Security services were provided by the APS;

Catering was provided under contract by a
private catering company;

Medical services were sourced from the local
area medical service on as and when required basis;

Repairs and maintenance was carried out on an ad
hoc basis.

89.
The question of the outsourcing of management of
immigration detention centres has been comprehensively dealt with by the ANAO. DIMA
has cooperated fully with the ANAO in this regard.

90.
Government Senators are of the view that, in relation
to paragraphs 8.73-8.84, further details from DIMA's answers to questions on
notice received by the committee on 7
February 2006 would have provided useful background information in
relation to alleged cost-shifting by the Commonwealth under Australia's
Humanitarian Program.[1138]

91.
Australia’s
Humanitarian Program comprises an offshore resettlement component, which
provides resettlement to persons overseas who are in the greatest need of this
durable solution, and an onshore protection component which provides protection
to persons who arrive in Australia
and are in need of that protection. Refugees are permitted to stay in Australia
under both the offshore and onshore components.

92.
The offshore component of Australia’s
Humanitarian Program is guided by the priorities of the United Nations High
Commissioner for Refugees (UNHCR) and comprises a Refugee category and a
Special Humanitarian Program (SHP). The resettlement component of the program
goes beyond any international obligations and reflects Australia's
desire to assist persons around the world in greatest need of resettlement.

93.
The Refugee category assists persons who are subject to
persecution in their home country and living outside their home country. Most
applicants under this category have been identified and referred by the UNHCR. Appendix
5 to the majority report includes the UN Refugee Convention definition of a
refugee.

94.
The SHP assists persons who are subject to substantial
discrimination amounting to gross violation of human rights in their home
country and who are living outside their home country. People who wish to be
considered for a SHP visa must be proposed for entry by an Australian citizen,
permanent resident, eligible New Zealand
citizen or an organisation operating in Australia.

95.
Australia is one of just ten countries operating a well
established and successful resettlement program and consistently ranks within
the top three countries in terms of the number of persons resettled alongside
the US and Canada.

96.
The Humanitarian Program is planned on an annual basis.
The government increased the size of the program in 2004-05 to 13,000 places and
within it the Refugee category to 6,000 places, up from 4,000 places. This is
the largest offshore Refugee category for 20 years.

97.
Places under the Humanitarian Program are used for the
offshore resettlement component as well as for the onshore protection
component. The flexibility in the program means that places can be moved
between the SHP category of the offshore component and the onshore protection
component. Where places are required for protection visas to meet our
obligations under the Refugees Convention, a place is deducted from the
available offshore SHP places. The 6,000 places for the offshore Refugee
category are for use for that purpose only.

98.
In 2005-06, the allocation of 13,000 comprises:

6,000 Refugee category places for use offshore;
and

6,400 SHP for use offshore; and

600 places retained for use onshore.

99.
In line with UNHCR’s recommended regional priorities
the focus of the offshore program in 2005-06 will be on Africa,
followed by the Middle East and South West Asia.

100.
In short, the Government does provide wide-ranging
programs to assist newly arrived entrants under the humanitarian program.

Chapter 9: Removal and deportation

101.
The Chair's report expresses concern that there is no
requirement for independent review of removal actions themselves. Already the
immigration system is slow and bogged down with litigation. Government Senators
are of the view that the including an additional requirement for review of
removal actions would seriously undermine the integrity of Australia's
border control policies.

102.
Government Senators note that, in commenting on
removals in relation to its report on Ms Vivian Alvarez, the Senate Foreign
Affairs, Defence and Trade (FADT) Committee commented that clear and
comprehensive records of arrangements should be kept in relation to removals. This
is a reasonable expectation and DIMA is now focussing on maintaining accurate
records on removals.

103.
The FADT Committee also went on to say, however, that
there is 'lack of clarity over when DIMA’s responsibility for a detainee
formally ends'. Government Senators agree that clearly there have to be some
protocols to ensure that a person has some resources when they reach another
country after removal. Beyond that, DIMA cannot have indefinite responsibility
for a non citizen living overseas. Some practical codes have to be established
by ensuring that overseas authorities provide a person with information and as
many resources as possible to assist them, but it is unreasonable to tie legal
or moral responsibility to DIMA for the way a person's life in the country of removal.
Responsibility clearly lies with the authorities of other countries to look
after its nationals.

Numerous reports internationally have highlighted instances
where severe injury or death by asphyxiation have resulted from the excessive
use of force and inappropriate means of restraint.

105.
If the word 'internationally' had not been included, such
comments could be taken as applying to Australia.
Government Senators are not aware of any case where a detainee has died due to
unreasonable force being used and believe that use of this quote in the Chair's
report is irresponsible, defamatory and casts a slur on public servants.

106.
In relation to issues involving section 501 of the
Migration Act and its apparent misuse – Government Senators assert that it is
critical that the Minister maintain the discretion to be able to cancel a visa
without rights to review. This would be done in extreme circumstances where
Australian’s national security is at stake, for example, or where there is a
real threat to the Australian community. A review has been undertaken by DIMA
and it will also consider the Ombudsman’s report. In relation to Nystrom and
the effects of that decision, DIMA has acted lawfully to ensure that nobody who
might be affected by that decision is held in detention or removed.

Chapter 10: Student visas

107.
While noting that the activities of overseas-based
migration agents are discussed in paragraphs 10.14-10.20 of the Chair's report
in the context of students, DIMA's answer to a question on notice relating to
contravention by these agents could also have been usefully included in this
chapter.